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The duct tape defense



A successful drunk-driving defense used recently before the state Supreme Court may not be as beautifully concise and maddeningly impenetrable as Bill Clinton’s infamous “is” defense. But it’s close.

When Montana’s highest court ruled that the “front” of a car can mean the windshield just above the dashboard, and that “conspicuous” doesn’t necessarily mean easy to see, the judges were following a semantic argument presented by Missoula attorney Mark Jones. His strategy, and the court’s opinion in the case (State of Montana v. Lacasella), is not unlike the it-depends-on-what-the-definition-of-is-is defense employed the former philanderer in chief.

The case began in late Feb. 2001 when Missoula County Sheriff’s Deputy Michael Dominick stopped Gary Lacasella after dark near Marvin’s Bar at the interchange of U.S. 93 and I-90. Dominick pulled Lacasella over for not having a license plate mounted on the front bumper of his pick-up truck. As the two men spoke, the officer smelled alcohol and noticed that Lacasella “slurred his speech, appeared confused, and had difficulty removing his driver’s license from his wallet,” according to court records.

Subsequently Dominick performed a background check in the patrol car and learned that Lacasella had two prior drunk-driving convictions and that the driver’s license he fumbled had, in fact, been revoked. So Dominick subjected Lacasella to a field sobriety test, which the latter failed.

In court, Lacasella tried to have Dominick’s evidence thrown out, arguing that his license plate, which was duct-taped to the lower left corner of the windshield, was properly mounted, and that Dominick therefore didn’t have “particularized suspicion,” or reasonable cause, to pull him over that night.

The Justice of the Peace disagreed with Lacasella, as did Missoula District Judge Ed McLean upon appeal. But the Supreme Court agreed to take the case in August 2002 and ruled on Dec. 19 that Lacasella and his attorney were, indeed, correct.

Writing for the majority, Justice Terry Trieweiler interpreted a state law requiring that two license plates be mounted “one on the front and one on the rear” of every vehicle to mean “visible from both the front and rear.” Trieweiler also concluded that to be “conspiciously displayed,” as required by state law, a license plate need not be visible to an arresting officer at night.

Writing for the minority, Justice William Leaphart quoted from the American Heritage Dictionary, which defines “conspicuous” as “easy to notice” or “obvious,” and argued that Dominick had plenty of “particularized suspicion” by virtue of the simple fact that he didn’t see the license plate through the glare of headlights on the windshield.

In a third rejection for the prosecution, the court also ruled that Dominick was not allowed to stop Lacasella that night to investigate whether, as additionally required by state law, the license plate was “securely fastened” with duct tape to the windshield.


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